Citation NR: 9722353
Decision Date: 06/26/97 Archive Date: 07/02/97
DOCKET NO. 95-10 151 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
ATTORNEY FOR THE BOARD
D. Pickard, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1941 to
October 1945. His death certificate shows that he died in
March 1993.
This appeal arises before the Board of Veterans’ Appeals
(Board) of the Department of Veterans Affairs (VA) from a
rating decision of May 1993, from the Atlanta, Georgia,
Regional Office (RO). The sole issue on appeal concerns
entitlement for service connection for the cause of the
veteran’s death.
REMAND
The appellant contends, in essence, that the veteran’s death
was related to his service-connected injuries, and therefore
that she is entitled to Dependency and Indemnity
Compensation. Upon review of the record, the Board finds
that due process considerations require that this claim be
remanded.
The appellant asked in her Notice of Disagreement, dated June
1993, that she be scheduled for a hearing in regard to her
claim. The RO subsequently scheduled her for a personal
hearing. In August 1993, the appellant requested that her
hearing be postponed until she submitted “some medical
evidence that will support [her] claim.” The next month,
September 1993, she submitted a letter from a Dr. Wysong
which stated that the veteran’s service-connected disability
was an indirect cause of his death. There is some confusion
in this matter, as the appellant stated in a May 1996 letter
that she has submitted all of her evidence in regard to her
claim and wished it sent to the Board, and so it is unclear
whether the appellant still desires a personal hearing. To
ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
remanded to the RO for the following development:
1. The RO should contact the appellant
to clarify her request and subsequently
schedule her for a personal hearing as
appropriate.
2. If the appellant provides testimony,
the RO should readjudicate the issue of
entitlement to DIC benefits.
3. Thereafter, if the issue on appeal
remains denied, a supplemental statement
of the case should be provided to the
appellant and her representative.
The Board expresses its appreciation in advance to the RO for
its assistance in developing the requested evidence.
After the appellant and her representative have had an
adequate opportunity to respond to the supplemental statement
of the case, the appeal should be returned to the Board for
appellate review. No action is required by the appellant
until she receives further notice.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARK W. GREENSTREET
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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